Telecontract (Pvt) Ltd v Isaac Madzinga & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/292/14
HELD AT HARARE 12TH MAY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/292/14

HELD AT HARARE 12TH MAY 2014 			CASE NO LC/H/830/13

& 23RD MAY 2014

TELECONTRACT (PVT) LTD				Appellant

ISAAC MADZINGA						1st Respondent

DANIAL NYIRENDA					2nd Respondent

Before The Honourable G Musariri, Judge

For Appellant			Ms P Ncube,  Attorney

For Respondents			Mr B Makururu, Attorney

MUSARIRI, G:

On 30 August 2013 the NEC for the Engineering & Iron And Steel Industry made a determination.  It ordered that Appellant should reinstate Respondents’ employment. It further ordered that the matter should be reheard by a “properly composed” disciplinary committee.  Appellant  then appealed to this Court against the determination.  Respondents opposed the appeal.  The appeal raised both procedural and substantive issues.

Procedure

Whether the disciplinary committee was properly constituted?

The applicable Code of Conduct is incorporated in the Collective Bargaining Agreement: Engineering and Iron and Steel Industry S.I. 301/96.  Section 3 of the Code provides that a disciplinary committee shall comprise four (4)

members of whom 2 are appointed by management and 2 are appointed by the workers.  The minutes of the initial hearing on 10 April 2013 at Telco are filed of record.  A perusal thereof shows that the hearing panel comprised 2 management representatives and 2 worker representatives.  Thus ex facie the minutes, the panel complied with the requirements of the Code.  Respondents conceded that much.  However they then argued that the worker representatives were neither elected by the workers committee or the workers themselves.  The point was not raised at the hearing.  It was only raised at the appeal before the NEC.  I consider that the point should have been raised at the initial hearing.  In any event it is absurd for any employee to complain about the presence of employee representatives on a disciplinary panel.

Whether Respondents were given the opportunity to cross-examine witnesses?

The witnesses initially gave evidence in the absence of Respondents.  They were later asked to repeat their evidence in the presence of Respondents.  The minutes record the encounter thus,

“Isaac and Daniel were then called in to hear what Gumbo had just told the committee.  Isaac and Daniel denied ever going to the storeroom.   Gumbo was then asked to step out.”

The same process happened with the other witness named Munyaradzi.  Cross-examination is essentially  a confrontation between the accused and his accuser/s.  Respondents were given the opportunity to confront their accusers.  They simply denied the accusation/s.  They did not put specific questions to the witnesses.  I consider that this does not amount to a denial of cross-examination.  Their simple denials was their way of putting their case to their accusers.  That in my view complies with the right to confront one’s accuser/s.  Moreso in the context of a quasi-judicial tribunal which does not have formal rules covering the examination of witnesses.

Merits

A security chain went missing from a storeroom.  After a search it was recovered under a passenger seat in a vehicle that was being used by Respondents.  One of the witnesses Munyaradzi’s evidence was recorded thus,

“Whilst in storeroom Daniel picked the chain and put it into his pocket and they went out to the car  together.  Munyaradzi said he saw Daniel putting the chain under the seat.”

Munyaradzi’s evidence was corroborated by that of the guard named Gumbo who recovered the chain from respondents’ vehicle.  These facts lead to the irresistible inference that Respondents stole the chain.  I consider that the disciplinary committee was right in returning a guilty verdict.  By extension, I consider that the NEC grossly misdirected itself on the facts in discrediting Munyaradzi’s evidence.  Its determination cannot stand.

Wherefore it is ordered that,

The appeal be and is hereby allowed; and

The determination of the Appeals Board of the NEC Banking Undertaking dated 30 April 2013 is hereby set aside; and

Each party shall bear its own costs.

G. MUSARIRI

J U D G E